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"Currently being debated by the Senate, but rarely discussed on mainstream television, is the Shield Law. While on the surface it may seem to be rather innocuous, some of the language in it and its implications are quite problematic for journalists.

A Shield Law is a law which “provides statutory protection for the ‘reporters’ privilege’— legal rules which protect journalists against the government requiring them to reveal confidential sources or other information.”[1] Generally, this is a positive occurrence as journalists are much more able to conduct their work and bring information to public light if they do not need to worry about having to reveal their sources. While Shield Laws have occurred in the past, they have only been on the state level. This currently proposed Shield Law is the first one to reach the federal level and the main goal is to protect journalists from having to reveal confidential sources in federal cases.[2]

However, there are certain instances in which journalists will have to reveal sources, such as “(1) The party seeking disclosure has exhausted all reasonable alternative sources of the information; (2) The requested information is essential to resolving the matter; (3) Disclosure of the requested information would not be contrary to the public interest; and (4) In criminal cases, if the requesting party is the federal government, the government must show that there are reasonable grounds to believe that a crime has occurred.”[3]

While overall it may seem like a good bill, there are a number of problems with this Shield Law, officially known as the Free Flow of Information Act of 2013. For starters, this law would “allow the government to seize reporters’ records without notifying them for 45 days – a period of time that could be renewed by a judge 45 additional days – if investigators convince a judge pre-notification ‘would pose a clear and substantial threat to the integrity of a criminal investigation.’”[4] This power of seizing records without notifying reporters was used most recently in regards to the Associated Press, when the federal government seized their phone records in May of last year, with the government only saying that “they were needed for investigation of an unspecified criminal matter.”[5] Oh yes! What transparency and accountability! Infringing upon the First Amendment rights of reporters and then only giving what is essentially a BS, purposefully vague explanation.

In addition to this, the government can force journalists to give up information in the name of national security.[6] This is quite worrying as the US government has time and time again been involved in operations of entrapment.[7,8] Due to this, they could potentially have a scenario where they create a case of entrapment, label it terrorism, and then force all journalists to give up information on any and all sources as well as seize their records under the guise of national security.

Yet in this current bill, not only can the government continue to engage in the above behavior, but they are also defining who is and who is not a journalist. Initially, the bill defined a journalist as “a person who has a ‘primary intent to investigate events and procure material’ in order to inform the public by regularly gathering information through interviews and observations” and added the stipulation that “The person also must intend to report on the news at the start of obtaining any protected information and must plan to publish that news.”[9] This seems to be rather fine as it would include mainstream and independent journalists. However, the situation became problematic when in September 2013, an amendment to the bill was proposed that- let’s just say- ‘more clearly’ defined who and who was not a journalist.

Kevin Gostolza of Firedoglake discussed this amendment last year and it would be appropriate to quote him now at some length:

A “covered journalist,” under the amendment, would be the following: an employee, independent contractor, or agent of an entity or service that disseminates news or information by means of newspaper; nonfiction book; wire service; news agency; news website, mobile application or other news or information service (whether distributed digitally or other wise); news program; magazine or other periodical, whether in print, electronic, or other format; or through television or radio broadcast, multichannel video programming distributor (as such term is defined in section 602(13) of the Communications Act of 1934 (47 U.S.C. 522(13)), or motion picture for public showing… That person must also have the “primary intent to investigate events and procure material in order to disseminate to the public news or information concerning local, national, or international events or other matters of public interest.” Or, that person should be engaged in the “regular gathering, preparation, collection, photographing, recording, writing, editing, reporting or publishing on such matters.” A person would also qualify as a “covered journalist” if they had experience in journalism and had “substantially contributed, as an author, editor, photographer, or producer, to a significant number of articles, stories, programs, or publications” in the past twenty years. As Feinstein said, it would “cover a legitimate journalist such as a Dan Rather who leaves his media entity and takes to publishing freelance stories on the web.”[10] (emphasis added)

Now, let’s begin to take those paragraphs apart and analyze them, bit by bit.

In the first paragraph, the law defines a journalist as “an employee, independent contractor, or agent of an entity or service that disseminates news or information” and then goes on to define the many mediums by which the news can be disseminated. Some of this language seems to be problematic. What exactly do they mean by “independent contractor?” Do they mean a freelancer? Do they mean someone like myself who researches and writes independently?"

The facts are not as clear as I would have liked, so I will try my best to distill them. Summit Accommodators voluntarily petititoned for Chapter 11 bankruptcy in late 2008. The defendant Kevin Padrick, a senior principal and co-founder of Obsidian was appointed as a bankruptcy trustee. Crystal Cox is a self-appointed real estate whistleblower. Cox created and wrote content for blogs: http://www.obsidianfinancesucks.com andhttp://www.summit1031sucks.com. Some of the claims Cox made about Padrick on the blog, he is: corrupt, committed tax fraud, and called him derogatory names. Obsidian Fin. Grp., LLC v. Cox, CV-11-57-HZ, 2011 WL 2745849 (D. Or. July 7, 2011). Obsidian Financial Group and Padrick sent Cox a cease and desist letter, but she continued anyway.

One observation the district court made was Cox did not try to attempt any neutrality. With domain names like http://www.obsidianfinancesucks.comvisitors should know that the blog will take a critical stance, “which expressly discloses its bias against bankruptcy courts, bankruptcy trustees.” Obsidian Fin. Grp., LLC v. Cox, CV-11-57-HZ, 2011 WL 2745849 (D. Or. July 7, 2011) adhered to in part on reconsideration, 812 F. Supp. 2d 1220 (D. Or. 2011) aff’d, 12-35238, D.C. No 3:11-cv-00057-HZ (9th Cir. Jan. 17, 2014). Many of the blog posts were not counted as libelous because they were based upon opinion rather than fact. However, the district court found one blog post libelous in nature because it made “fairly specific allegations [that] a reasonable reader could understand . . .to imply a provable fact assertion.”Obsidian Fin. Grp., LLC v. Cox, 812 F. Supp. 2d 1220, 1233 (D. Or. 2011) aff’d,12-35238, 2014 WL 185376 (9th Cir. Jan. 17, 2014).

Cox then asserted that the First Amendment offered her protections from liability deriving from New York Times Co. v. Sullivan, 376 U.S. 254 (1964). First, she claimed that the subject matter was of public concern. Second, both Padrick and Obsidian were public figures. The judge rejected both of these arguments saying that neither Obsidian nor Padrick sought to be a public or limited public figure. Instead, Cox created the controversy around them.

Both parties appealed.

The Ninth Circuit Court of Appeals reasoned that since the New York Timescase, courts have not given any extra protection to journalists than they have anyone else. “[E]very other circuit to consider the issue has held that the First Amendment defamation rules in Sullivan and its progeny apply equally to the institutional press and individual speakers. . . We agree with our sister circuits.”Obsidian Fin. Grp., LLC v. Cox, 12-35238, D.C. No. 3:11-cv-00057-HZ (9th. Cir. Jan. 17, 2014).

The Court went even further by saying that Padrick’s actions were a matter of public concern. Since Padrick was the trustee of failed ponzi scheme that involved tens of millions of dollars his actions were of public interest. Furthermore, because Cox accused Padrick of fraud among other things, her accusations were also a matter of public concern.

One thing the Ninth Circuit Court of Appeals did not address is how she made her accusations. Some individuals have asserted that Cox’s motives are not all that pure and even go so far as to call her manipulative with financial motives, rather than a journalist.

Critics say because her day job is to manage people’s reputations on the internet and when acting as an investigative journalist, Cox has registered dozens of domain names to negatively influence the search results of a person’s name. Cox will then ask for a fee in order to repair one’s reputation. See Complaint at 2-4 Randazza v. Cox, 920 F. Supp.2d 1151 (D. Nev. 2013) (No. 12-02040).

In my opinion, part of the issue is definitely how Cox made the speech. By linking together multiple websites together to voice her opinion, Cox manipulated the search engine results. Professor Eugene Volokh, who represented Cox at the oral argument in front of the Ninth Circuit Court of Appeals, argued previously that search engine rankings are a type of corporate speech made by the search engines. If Professor Volokh’s argument is believed, then Cox’s speech should not be considered pure at all.

I do not believe there is any case law on whether search engine manipulation can be considered defamation or not. However, this technological part of the argument is something that the Court missed in their analysis. In a later post, I will analyze Professor Volokh’s argument about search engine rankings being considered speech, and the logical extension, if search engine rankings are manipulated can that be considered defamation."

oh and P.S. - My Day JOB at that Time was a Real Estate Broker Owner, and my "Day Job" has NEVER EVER been a "reputation manager" .. ahh but who cares about Factoids RIGHT?

oh and I registered the Domains NOT to negatively Influence the Search Engines but to use MODERN, New Media to EXPOSE CORRUPTION.. and ya Kevin Padrick and Marc Randazza are CORRUPT.. do some investigatin'